Trailer hitch assault on First Nations woman in Thunder Bay not only factor in her death, defence argues
Defence argues assault with a trailer hitch not only cause of Barbara Kentner's death in Thunder Bay
The man accused of killing a First Nations woman by throwing a trailer hitch at her from a passing car told his friends that night that he "wanted to drive around and yell at hookers," according to testimony entered into evidence at his trial in Thunder Bay, Ont. on Monday.
Brayden Bushby, 21, pleaded guilty to aggravated assault and not guilty to manslaughter in Ontario Superior Court, relocated to a hotel ballroom after a fire at the Thunder Bay courthouse.
He had been charged with second-degree murder after Barbara Kentner, 34, died in July 2017. She'd suffered a perforated bowel after being struck by a trailer hitch thrown at her from a passing car six months earlier.
"All [Bushby] was doing was laughing," after throwing the hitch, witness Nathan Antoniszyn told the court during a preliminary hearing in September 2018. The publication ban on his testimony was lifted on Monday when the transcript was entered as evidence in the trial.
Antoniszyn said Bushby was clearly drunk as they and two other people were driving around after midnight on Jan. 29, 2017. Bushby was sitting on the window sill of the front passenger seat after picking up the hitch from the roadside earlier in the night, he said.
"And I hear a big bang and I look back and I see there's two people behind us," Antoniszyn said. "There's one of them on the ground and one of them standing up."
Court also heard videotaped evidence from Kentner, in a sworn statement she gave police in March 2017.
The trailer hitch "hit me right across the stomach, I couldn't breathe," she said. "I was crying and crawling along. I just wanted to lay there," she said.
Kentner recalled the person who threw the hitch from the passing car yelling, "Yeah, I got one."
Her sister, Melissa Kentner, who was with Barbara that night, said she also heard that phrase. She was the first witness at the trial, and told the court she was walking ahead of her sister, telling her to hurry up because it was cold when a car started driving toward them.
"And that kid was hanging out the window," she told the court eyeing Bushby from the witness stand. "I hear a clink, clink sound and I hear that kid say 'Oh, I got one.'"
The family had hoped the case would be prosecuted as a hate crime and hundreds of First Nations leaders from across the country expressed outrage when the charge against Bushby was changed from second-degree murder to manslaughter.
But Bushby's lawyer told the court in his opening statement that it was not a racially motivated crime "despite media attempts to characterize this offence as such."
Instead, lawyer George Joseph said it was "just people being stupid."
Joseph also told the court that he was setting out to prove that something else happened to Kentner which would show that what Bushby did was no longer a "significant contributing cause" of her death.
'This isn't about me, this is about my sister'
During cross-examination, Joseph noted Kenter was on parole and, as a condition, had a curfew. Kentner said she had her parole officer's permission to ignore the curfew.
Joseph claimed that the "real reason" that Melissa waited until the morning after Barbara had been struck by the trailer hitch before going to the hospital was to avoid arrest on breach of her conditions.
"This isn't about me, this is about my sister," Kentner shot back. "For my sister's health, I would have done it."
Assistant Crown Attorney Andrew Sadler said problems in convening a jury were a factor in how Bushby came to be tried by a judge alone on the lesser charge of manslaughter.
The second-degree murder trial, initially scheduled for January was pushed back to April while lawyers awaited clarity on new rules for jury selection, Sadler told CBC News in an interview.
"Everyone was of the view that this wasn't a case that, because of a procedural or technical issue, we wanted to risk having to run the trial and then having to run it again knowing we got the procedure wrong," he said.
That delay pushed the trial date to April and then came the disruptions caused by COVID-19 and the difficulties it presented in convening a jury trial.
In September, Bushby agreed to plead guilty to aggravated assault and changed his selection to judge alone, paving the way for the trial to proceed in October, Sadler said. But then, a fire damaged the courthouse and the trial was delayed again.
Change in venue
It was only on Sunday that court staff confirmed the trial would proceed, in the ballroom of the Courthouse Hotel, a building that was an actual courthouse until 2016.
"I appreciate that the hotel made this space available so this trial could proceed," said Justice Helen Pierce in her opening remarks, noting that there may be "glitches" because of the change in venue.
"It is my goal to treat each person in this courtroom respectfully, in turn I ask each of you to treat each other respectfully so the court can proceed peacefully," she said.
The Crown said it will call a forensic pathologist as its next witness when the trial resumes at 1:30 p.m. on Tuesday.